From oil to forestry projects: what the land title ruling means and what comes next
Andrea Janus, CTVNews.ca
Published Thursday, June 26, 2014 12:39PM EDT
Last Updated Thursday, June 26, 2014 9:52PM EDT
A Supreme Court ruling granting land title to a British Columbia First Nation gives Canada’s aboriginal communities “a lot more power,” says a B.C. chief, and it will have implications for similar claims in the Maritimes, Ontario and Quebec.
In a unanimous decision, the nation’s top court recognized the Tsilhqot’in’s title to nearly 2,000-square-kilometres of land in B.C.’s Cariboo-Chilcotin region.
The ruling will make it easier for First Nations to establish title over traditional lands used for hunting and fishing.
However, title is not absolute and only one of two conditions must be met for resource and economic development projects to go ahead on the land. The province must either reach an agreement with the First Nation, or justify infringing on that title right by showing that the project has urgent implications for the province’s economic welfare and proceed with work, but compensate the First Nation.
David Rosenberg, lead lawyer for the Tsilhqot’in First Nation, says the ruling will the government “to modify its behaviour when dealing with aboriginal title lands.”
“In particular where aboriginal title is proved -- as it was in this case for the first time ever -- with those particular lands the consent of the First Nation may be required before development can take place on their lands,” Rosenberg told CTV News Channel.
“If the consent is not obtained, then the government is going to have a very difficult time justifying development or for that matter dealing with the lands in any way contrary to the First Nation’s interest.”
In order to infringe on the title, government would have to pass legislation “that has a compelling and substantive objective that would have to be proven in court to override aboriginal title, and that will be no small matter. That will be a very difficult test for the government to meet.”
Joe Alphonse of the Tl’etinqox Government and tribal chairman of the Tsilhqot’in National Government, said the decision “gives First Nations people a lot more power, and it will provide a brighter future for us as a whole.”
First Nations want resource development and the economic opportunities that go with that, Alphonse said. But governments must “come through our doors” if they want those projects to go ahead.
“They have to recognize us as a new third layer of government and have to deal with us accordingly,” Alphonse told CTV News Channel. “If they want big projects, they are going to have to come through our doors, work with us.”
First Nations communities “need resources to govern our people,” Alphonse said. “We’ve been lacking that for an eternity.’
“We need health dollars, we need education dollars, we need housing,” he said. “Most of our First Nations communities right across Canada don’t even have adequate water supplies. So, it’s huge.”
Jody Wilson-Raybould, Regional Chief of the B.C. Assembly of First Nation, called the decision “a game changer.
“The court has clearly sent a message that the Crown must take Aboriginal title seriously and reconcile with First Nations honourably.”
The ruling will apply to any unresolved land claims, and the biggest impact will be felt not only in B.C., but also in the Maritimes, as well as in parts of southern Ontario and southern Quebec.
There are “several outstanding court cases” where First Nations are seeking land title claims, according to Aboriginal Affairs and Northern Development Canada.
Minister of Aboriginal Affairs and Northern Development, Bernard Valcourt, said the federal government is currently reviewing the decision “to determine next steps.”
“Our Government believes that the best way to resolve outstanding Aboriginal rights and title claims is through negotiated settlements that balance the interests of all Canadians,” Valcourt said in a statement, noting that since 2006, the federal government has reached four treaties in B.C.
“We are committed to continuing this progress and ensuring an effective process for negotiating treaties.”
The decision will lead to “intensified negotiations” between the federal and provincial governments and First Nations over land title claims, says Gordon Christie, associate professor of First Nations legal studies at the University of British Columbia.
“I think the Court has been signalling that for many years now, that they just wish that the provinces and the federal government would get together with aboriginal communities and negotiate these matters,” Christie told CTV News Channel on Thursday morning.
“And what they’ve essentially done today is give First Nations the kind of negotiating stance they need for this to actually happen.”
Northern Gateway implications
The decision has particular implications in B.C., with the Northern Gateway pipeline project looming on the horizon. Last week, the federal government gave the project the green light, but said Enbridge must meet all 209 conditions set out by the National Energy Board late last year, as well as five conditions set out by the provincial government.
The decision has given all levels of government “a kick” to take the issue of land title claims seriously, Christie said.
“First Nations want to talk about resource development,” he said. “They just want to be at the table and have a voice that’s heard.”
Natural Resources Minister Greg Rickford told reporters in Calgary Thursday that he needs time to review the decision and would not speculate on what it means for Northern Gateway.
Meanwhile, industry stakeholders said much the same thing when asked for comment about the decision.
After the ruling was handed down, the Mining Association called it “a very important decision for the Canadian natural resource sector and the mining sector in particular.
“The Court has provided clarity on the establishment of aboriginal title and its impact on future land use,” read the statement provided to CTV News. “It has also provided additional guidance on the Crown's duty to consult and accommodate when required.”
The group is “reviewing” the decision, and said it would be offering no further comment.
The federal NDP said all levels of government will have to consider whether prior actions, including granting forestry licenses to companies working on Tsilhqot’in land, remain permissible under Thursday’s decision.
“Now, all levels of government will need to stop and consider whether or not they’ve met the duty to consult or justified an infringement,” NDP Aboriginal Affairs Critic Jean Crowder said in a statement. “Governments will have to meet this obligation so development can continue, with First Nations determining how to use the land, not third-parties, to the benefit of many Canadians.
“The Supreme Court also said that government may have to re-assess prior conduct and legislation if it unjustifiably infringes Aboriginal title.”
Rosenberg agreed, saying projects that have been approved or are still at the planning stages “might” have to meet the new framework set out by the top court’s decision. The government may have to “justify interference with aboriginal title lands,” even if that title was proven after the project got underway, he said.
“So, I think what it means is, government and industry should be very clear going forward that they either have the consent of the First Nation where an aboriginal land claim is being made, or that they’ve done their utmost to try and consult and accommodate that First Nation prior to title being proved,” Rosenberg said.
Otherwise, “industry and government may find itself in the embarrassing position that it has to roll back the development or project underway.”
Asked whether projects that had been given the green light prior to the ruling could be reversed, B.C. Attorney General and Justice Minister Suzanne Anton said her department is still analyzing the decision’s legal implications. As for Northern Gateway’s future, the province is focused on ensuring that Enbridge meet the five conditions it set out before it will sign off on the project, she said.
Meanwhile, Anton said the province is “committed” to working with First Nations communities “to make sure we all have healthy, thriving communities both social and economically.”
She went on: “We all know the success that comes when we choose to negotiate rather than litigate. As the courts have repeatedly pointed out, negotiation is preferable. When that happens we all win: First Nations, and everybody in British Columbia.”